Earlier this year Customs and Border Protection officers in Nogales, Arizona seized 254 pounds of fentanyl that was hidden in the floor compartment of a truck transporting cucumbers. Fentanyl is a deadly opioid (in powder form) that is often masked and /or mixed with heroin. It is responsible for thousands of deaths in the United States. A quarter milligram of the drug (the equivalent of several grains of rice) has the potential to kill a person quickly.

The United States is in the midst of an opioid addiction crisis which resulted from the over prescription of addictive pain medications. Sadly, those addicted to opioids often become addicted to heroin. The Department of Health and Human Services estimates that nearly 80% of heroin users reported previously misusing prescription opioids.

The families of those suffering with addictions, whether it be opioids, heroin, cocaine, and/or alcohol are often confronted with the issue of how to provide for loved ones suffering from an addiction in their estate plans. The first, and sometimes most difficult, step for the parent and/or grandparent is admitting that their child/grandchild is an addict. Recently, I met with clients where it took significant inquiry on my part before the parents were willing to admit that there had been an opioid addiction problem with one of their children.

Before all the planning options are reviewed with the client it is often first necessary to overcome the hurdle of the parent and/or grandparent instinctively wanting to totally exclude the addicted person from their planning, which in light of the facts and circumstances presented may appear to be a logical and reasonable reaction. However, while the option of total exclusion may at first glance appear appropriate, in the long run, it totally eliminates the possibility that the individual may in the future overcome his or her addiction. It also increases the possibility that the person engaging in the planning because of death or illness did not have the opportunity to amend his or her plan if the beneficiary eventually conquers the addiction.

In my experience, the use of a trust for the benefit of the addicted person, whether it be included in one’s last will or in a separate trust document, provides the greatest flexibility. The trust can be drafted so that the assets held in the Trust (both principal and income) are paid to the beneficiary only upon certain conditions being satisfied as to his or her treatment and/or recovery—thus, helping to eliminate the possibility of Trust distributions being used to further enable one’s addiction.

For example, the trust could contain provisions that require as a precondition to the beneficiary receiving any distributions from the trust that:

1. They be enrolled in a treatment and/or detox program for a specific period of time. The trust can also specify that they be regularly tested (monthly/quarterly) for any chemical / alcohol and/or drug dependency; and that the results establishing that they are sober be provided to the trustee as a prerequisite to any distributions being made;
   
   
2. They be enrolled in a long-term treatment plan. The trust could specify acceptable treatment plans and providers based on the addiction at issue. One could specifically provide that the treatment be on an outpatient and/or inpatient basis, depending on the condition of the addicted individual.
   
   
   

   The Trust can be drafted so as to allow the trustee(s) the ability to assess the circumstances surrounding the individual beneficiary, his or her treatment and progress towards the goal of permanent sobriety. Avoiding trust conditions that are unduly restrictive and inflexible will allow the trustee selected to utilize their discretion to help achieve sobriety while allowing the beneficiary to avoid financial ruin; 

3. The trust can mandate that the beneficiary execute HIPAA Authorizations which allow the Trustee(s) to directly speak his or her physicians, psychiatrists, and treatment and detox providers prior to the trustee making any trust income and/or principal distributions to the beneficiary. Allowing the trustee to have a direct line of communication with treatment providers will allow the trustee to be able to act with the confidence that he or she has been provided with an accurate picture of the facts and circumstances surrounding the beneficiary’s current conditions; and
   
   
4. The trust should also have specific provisions delineating what steps the trustee(s) can undertake in the event the beneficiary fails to satisfy the prerequisites for distribution of trust income and/or principal being made to them.

While it may sound harsh, there may come a point in time where the likelihood of sustained sobriety is not possible. Thus, it may be necessary that the trustee(s) have the discretion to not make any distributions, but, after a certain period of time has passed, terminate the trust and make terminating distributions to someone other than the named beneficiary. Obviously, this would be the most drastic measure that the trustee could take and should probably only occur when it becomes clear that sobriety cannot be achieved and maintained.

As can be seen from the above stated, the trustee plays an integral role in the administration of the trust for the beneficiary suffering with addiction. Thus, the selection of a person and/or institution that has the confidence of the parents or grandparents is critical. While naturally that may be a parent and/or sibling of the trust beneficiary, it is important that the relationship between the trustee and beneficiary be thoroughly examined. Placing a family member in the position of needing to directly communicate with the addict/beneficiary and his or her care providers may be asking a lot, and will likely place that individual in a position of conflict with the addict / beneficiary. Having a trustee that may have already had a difficult relationship with the beneficiary can also create additional problems. Selecting an independent (nonfamily member or even a financial institution such as a bank) as the trustee and/or co-trustee, whether it be a trusted advisor, family friend, lawyer, and/or accountant, should be considered.

Thoroughly assessing the conditions and circumstances surrounding an addicted loved one and how best to provide for them requires a great deal of thought and consideration by the family and the professionals assisting them.